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The inexplicable nightmare (inexplicably) explained

Suesspicious Minds has blogged twice already about a case involving a Latvian family who appear to have flown the jurisdiction back to Latvia in order to avoid care proceedings. First he responded to Christopher Booker’s article : Police ignore judge’s order to help Latvian family escape British social workers,which described the “inexplicable nightmare” into which the family had been thrust. Subsequently, he made a further post once the relevant judgment was published. He is too quick on the draw for me to keep up with him these days!

One particular part of the first Suesspicious Minds post is worth setting out in full :

…when there is a Court case where the Judge actually uncovers the sort of dark dealings by social workers or a cock-up or mistake by professionals that led to children being wrongly separated from families, Booker is always silent. Where are his columns on Al Alas Wray, on the foster carer who used racially abusive language to the mother, on the mother who wasn’t told for six months that whilst she’d been in a hospital having mental health treatment that social workers had taken the child away from the neighbours she’d left them with, on the Hampshire case from last week?

There are genuine scandals that happen in family Courts – appeal Courts showing why less senior Judges had made mistakes or had not been fair, Circuit Judges uncovering wrong-doing or errors or even conspiracies involving lying to the Court. They do happen – you’d be a fool to say that they didn’t. And maybe those uncovered cases are the tip of the iceberg, and it is right for journalists applying the usual codes of practice that govern journalism to dig and investigate and bring them into the light. I’ve no problem at all with a journalist attacking the system and wanting to reform it. But if you were a columnist crusading for reform of the family justice system, why wouldn’t you be interested in writing about these cases where the facts absolutely demonstrate that there had been something rotten in the State of Denmark? They aren’t conspiracy theories, they are facts.

In the second post, Suesspicious Minds is able to compare the “inexplicable nightmare” claims to the judgment itself. He notes that the judgment describes ample reason both in law and common sense for child protection workers to take urgent steps to protect the children – there is a marked contrast between the words chosen by Booker to describe the injuries on the child and the account of the facts by the judge – who describes a mark to the neck and two others, some of which had the appearance of burn marks or of being caused by a belt or a rope, and (notably absent from Booker’s account) the child said he had been hit with a belt by one of his parents. As observed in that blog post – whilst none of us knows whether things were in fact as they seemed, there did rather seem to be enough to be going on with. It is a truth universally acknowledged that a social worker is of course damned if they act and damned if they don’t.

But there are two particular points that haven’t been tackled by Suesspicious Minds, which I wanted to touch upon :

Firstly, the apparent prohibition on the naming of the Local Authority :

Booker talks on 28 November of “A social worker (of a council we cannot name on the orders of Judge Ross Duggan)” … and later complains that “seemingly contrary to a recent ruling by Lord Justice Munby, the head of the family courts, that local authorities in such cases can be named, Duggan insisted that in this case it would be a contempt of court, punishable by imprisonment.”

Suesspicious Minds said on publication of the judgment (only days later on 4 Dec) :

The eagle-eyed reader may spot that the name of the Local Authority is in the name of the case, rather than being prevented from being known because of a gagging order. There is no gagging order. The usual restrictions on naming the children apply. [“Ah,” Booker defenders are saying already, “that’s only because Booker called them out on it, so they had to back down.”]

The transcript of judgment which has been released on BAILII contains a copy of the order made on 20 November (the day following the grant of the Emergency Protection Order) (We do not have the order made on the first day – the EPO itself, but these are usually in pretty standard terms). It is therefore pretty clear that there is no contra mundum injunction (an order which ties the hand of anyone who is aware of it) preventing the identity of the local authority being published, breach of which would be a contempt of court. However, the order does appear (if the version that is incorporated into the judgment is an accurate copy of the one actually drawn and issued by the court) to adopt the Case Management Order (“CMO”) format, which includes the standard rubric :

The identity of the children and those named in paragraphs 1 and 2 are not to be disclosed in public without the permission of the court.

The name of the LA is included in paragraph 1 and so it appears they ought not to be named. One could have a nice argument about whether this is generally intended to prohibit the identification of Local Authorities, whether it was intended to do so in this case, and whether this rather vague rubric could ever be effective and enforceable. But in itself the naming of a Local Authority as having brought care proceedings is not a contempt of court. It may become a contempt if a court has specifically ordered that it should not be done, or if by identifying the Local Authority the identity of the children becomes known (for example through jigsaw identification in some cases with unusual features). Booker seems to assert that the judge specifically prohibited it in this case (“Duggan insisted“), but it seems highly unlikely given the urgency and time of hearing that any member of the press was present either when the EPO was granted, or the following evening when the second order was made (and we know the parents weren’t present to pass their account on to the press). Based on past performance I am willing to take a punt on Booker’s reference to the Judge’s “insistence” being no more than a spun reference to the fact that the order contains the stock phrase I’ve set out above. Or, if I am wrong and Booker or some other press representative was present, I would hazard a guess this was no more than a general warning to take care not to publish material which might when taken together breach s12 AJA or s97 CA 1989.

If HHJ Duggan had really intended to injunct the press in relation to the ID of the LA, particularly if he had been “insisting” (presumably in response to a query or request to publish from some person present) – I would expect to have seen at least a line in HHJ Duggan’s judgment explaining a) why he did so and b) why he changed his mind (when he published the name in the judgment). There is no such explanation. And so I don’t think there was any gag or any intention to gag at all.

Whilst I think this is probably a bit of “playing the secrecy card” for journalistic effect – this is the danger of templates, particularly where those in circulation are full of errors – when one has the luxury of time to draft one can correct the errors, but in emergency situations this is unlikely to be top priority. The private law templates (CAP forms) inadvertently prohibit the naming of legal representatives, which is clearly neither appropriate nor necessary. I don’t think that the rubric in the CMO is really intended to prohibit the identification of an LA. What I think these rubrics are intended to do is to flag up the prohibitions contained in s97 CA 1989, which is backed by criminal penalties – it is for this reason I assume that there is no penal notice attached to the rubric – it is not intended to go wider than s97. My guess is that this stock phrase was not given a second thought by anyone, and it has now permitted an allegation of inappropriate gagging to be made.

The second point I want to look at is the suggestion that the authorities are so lacking in confidence in our court / child protection system that they are willing to disobey orders of the court in order to assist fleeing families. Again, we need to look at the judgment set out in the order.

Booker says :

When the family checked in at Dublin airport they were detained by six police, clutching a copy of the judge’s order. But having interviewed each member of the family separately, the police waved them on. On arriving at Riga, the family was again stopped by police, again holding a copy of Duggan’s order. Again, after brief discussion, they sent the family happily on its way.

From this one rather gathers that the police were expected or supposed to do something that in defiance of the order they did not do. But if you read the order it is an order made only against the parents. It requires them to come back. It neither requires nor asks anything of the police or any other authority. It gives no authority to any person to seize the children or stop the parents.

I don’t know if this was intentional on the part of the court / LA or if it is a case of rushed drafting but that is the effect of the order as shown in the judgment. We also don’t know what steps the Local Authority took to seek orders in or assistance from the Irish or Latvians (as suggested may be necessary by the Judge) – but certainly there is not reference to such.

True, s44(4) Children Act 1989 (Emergency Protection orders) provides that while an EPO is in force it

(a) operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant; and (b) authorises (i) the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there….

It is an offence to obstruct someone carrying out a removal under (b) but not to fail to produce the child under (a) – but in any event (a) is only effective if there is a request to some person to produce the child – the orders we have seen make no such request and we do not know that such a request was made to the authorities prior to them sending the family on their way.

Of course I can only speculate about the decision making process of the Irish police, but it may well have been that the police considered that they had neither the power nor the evidence upon which to detain the family (they will likely not have had the information we now have from HHJ Duggan’s judgment) and may well have been presented with happy, apparently well children. I suspect that the position may be rather different in relation to the Latvian authorities – it seems that they actively assisted in the repatriation of the family, and this is not entirely unexpected – several European countries are known to have a low regard for our “forced adoption” system (although of course this was not an adoption case, although it is possible it would have become one in due course).

My speculation on some or all of these points may be wrong, but frankly, my guess is as least as good as Booker’s – and probably more reliable. He doesn’t know why the police acted as they did any more than I, and to construct an entire article on the premise that the the authorities are simply refusing to assist our “notorious” family courts is sheer propaganda.

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4 thoughts on “The inexplicable nightmare (inexplicably) explained”

The only part of your analysis is in how you speculate that the foreign embassy helped spirit the family out of the country. If you read the EPO a little closer you would have seen where it stated that the embassy contacted UK authorities about the parents attempt to flee. It strikes me as an odd strategy to inform the LA of the parents actions if you are trying to get them out of the country.

Latvia’s problems with the UK courts are their own fault for refusing to take part in cases. As per BRii every EU partner is notified about cases concerning their citizens when applicable, that they have chosen not to participate in such cases up til now is on them.

Hi John,
I’m not sure if there are some words missing from your first sentence? Anyway, I think you are referring to pa 4 of the EPO *judgment* “It seems that the parents have been in touch with the Latvian Embassy because the Latvian Embassy have been in touch with the local authority. The local authority assure me that they will continue to keep the Latvian Embassy informed as to developments.” – which I confess I had not fully appreciated. I’m not sure that paragraph changes anything I have said really – we still don’t really know what part the Latvian’s played – except that Booker tells us that the Latvian embassy in Dublin issued new documents to enable them to fly to Latvia. It may well be the police in Dublin were piggy in the middle.

No, he was not outside his jurisdiction. Jurisdiction is clearly conferred by habitual residence not presence.
Latvia and other Eastern European countries may object but they are signatories / subject to the same laws that confer this jursidiction.
It seems to me it was an attempt to stop them going abroad. Whether they will get them back is another question entirely (very probably not I’d have thought).